Can job applicants bring disparate impact claims under the ADEA?

Americans are living and working longer than in previous generations.  Over the last ten years, the over 45-year-old work force has grown dramatically, from 31.7% of the country’s workforce in 1996 to 39% in 2006 and 44.3% last year.  The percentage is expected to grow even larger, as the number of American workers over the age of 65 is projected to rise sharply.

At the same time, a recent study by the Federal Reserve Bank of San Francisco seems to confirm previous studies that show that older workers in general face significant discrimination in hiring, with older female workers facing even more age discrimination than their male counterparts.  Discrimination against older employees may stem from several misinformed worries employers have about hiring older employees, including an assumed lack of flexibility or unwillingness to embrace change, likelihood of leaving employment, and the prospect of longer absences due to sickness.

Older workers may especially face discrimination applying for or working in technology companies.  From 2008 to 2015, employees or applicants at Silicon Valley’s 150 largest tech companies filed 226 complaints of age discrimination, 28% more than racial bias complaints filed against those companies and 9% more than complaints based on gender bias.  While recruiting, tech companies often cloak their prejudice in a desire select employees that can present a youthful, progressive image to customers and investors and often worry that older workers may not be willing to work long hours or stay up-to-date with technical skills.  Whether through deliberate discrimination or facially neutral recruiting tactics (such as hiring only recent graduates), these companies have established a younger workforce than other companies; whereas the median age for an American worker is 42, the median age at companies such as Apple, Google, and Facebook are 31, 30, and 29 respectively.

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Ban the Box and Perverse Consequences, Part II

This post is the second in a three-part series.

This is the second in a series of three posts on the prominent perverse consequences argument that “Banning the Box” inadvertently exacerbates the racial inequality it purports to redress.  The first post criticized this argument for positing an either/or choice between suppressing discriminatory record checking and suppressing discriminatory racial stereotyping, rather than embracing a frontal assault on both.  This post criticizes the perverse consequences argument for using the wrong conception of racial equality.

Before continuing, here is a quick review (more details in the first post).  The perverse consequences argument builds on empirical studies that find, counter-intuitively, that limiting employers’ ability to check criminal records may decrease overall hiring of people of color.  This surprising result arises because record checking has opposite effects on two different sub-groups of people are color: those with records are screened out more systematically, but those without records are hired more often.  The former effect arises from racial disparities in the criminal justice system.  The latter effect arises from racial stereotypes about criminality that employers apply when they lack individualized information.  Because the stereotyping effect is larger than the criminal justice disparities effect, in aggregate criminal record checks lead employers to hire more people of color.  Vice versa, banning the box costs jobs on net.  The perverse consequences argument concludes that banning the box undermines racial justice, contrary to its proponents’ aspirations.

My main point in this post focuses on how the perverse consequences argument uses aggregate racial employment levels as the ultimate measure of racial equality.  This is not unreasonable.  Indeed, progressive civil rights advocates often use this metric, especially in contrast to a focus on “discriminatory intent” and in particular to justify the “disparate impact” framework that motivates analyzing records exclusions as racially discriminatory.  Nonetheless, although this metric is highly relevant to detecting racial discrimination, it does not ultimately define racial justice, as I argue at length in a forthcoming article.  This Ban the Box controversy illustrates why.

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Today’s News & Commentary — August 10, 2015

Hillary Clinton, Politico reports, has a plan to overhaul how students pay for college – the New College Compact.  Under the Compact, students could attend four-year public colleges without having to take out loans and community college tuition-free.  If Clinton, or her ideas, succeed, it would drastically change the indebtedness of a new generation of American workers. Currently, Americans bear $1.2 trillion in student loan debt.  A senior campaign official subbed the plan a “bold transformation of how we would do higher education financing in our country.”  Clinton is slated to discuss the plan in further details today and tomorrow at campaign stops in New Hampshire.

Now for a fix of litigation news.  In a case of first impression before the Second U.S. Circuit Court of Appeals, Cheeks v. Freeport Pancake House Inc.,  a three-judge panel held that wage-and-hour claimants cannot privately agree with their employers to dismiss litigation under the Fair Labor Standards Act (FLSA) without judicial review, reports Reuters Legal.

The FLSA, enacted during the New-Deal era of protective employment policy, guarantees the federal minimum wage and overtime pay at one and a half times the rate of pay.  As of Friday, in the Second Circuit, courts are still the arbiters of that guarantee.  “The burdens (of seeking court approval) must be balanced against the FLSA’s primary remedial purpose: to prevent abuses by unscrupulous employers, and remedy the disparate bargaining power between employers and employees,” wrote Circuit Judge Judge Rosemary Pooler.  Abdul Hassan, counsel for the appellant-employer, plans to appeal the decision to the U.S. Supreme Court. “The extra work the decision places on the already overburdened federal judiciary, and the delays and costs imposed upon plaintiffs and defendants, raise serious concerns legal also.”

Reuters Legal also reports that the U.S. District of Massachusetts recently found, in Ronnie Jones et al v. City of Boston et al., that Boston is not illegally discriminating against Black police officers by testing hair samples for cocaine despite a strong statistical disparity between Black and White officers.  According to the presiding judge, Douglas Woodlock, Black officers are four times more likely to fail the test than white officers.  Plaintiffs attributed that disparity to the inherent unreliability of the test.  They argued that the test is not indicative of actual drug use because it cannot distinguish between actual drug consumption and environmental exposure.

Woodlock, however, found the test to be generally liable and correlated to legitimate work-related behavior.  He also concluded that plaintiffs had failed to demonstrate that there was an alternative method that could accomplish the same, paramount purpose: to ensure a drug-free police force.